Pursuant to A.R.S. § 13-751, each death sentence must rest on two findings: proof beyond a reasonable doubt of at least one aggravating circumstance set forth in A.R.S. § 13-751(F), and a finding “that there are no mitigating circumstances sufficiently substantial to call for leniency.” A.R.S. § 13-751(E). Mitigation is defined by our statute as evidence relevant to “any aspect of the defendant’s character, propensities or record and any of the circumstances of the offense.”

Statutory & Non-Statutory Factors: In contrast to aggravation, mitigating circumstances are not limited to those set forth in A.R.S. § 13-751(G). Thus, if the defendant’s evidence of intoxication fails to satisfy the enumerated mitigating circumstance (G)(1), it may be considered as a “non-statutory” mitigator. See, e.g., State v. Carreon, 210 Ariz. 54, 69-70, ¶¶ 75-80, 107 P.3d 900, 915-16 (2005) (court first rejects drug impairment under (G)(1), then rejects it as a non-statutory mitigator); State v. Murdaugh, 209 Ariz. 19, 35, ¶¶ 79-82, 97 P.3d 844, 860 (2004) (same).

The Ex Post Facto Prohibition and A.R.S. § 13-752(G): The language of the 1993 and 1999 statutes differ. “To the extent that A.R.S. § 13-752(G) changed the evidence admissible at the penalty phase, it does not provide that ‘less or different testimony is sufficient to convict.’..[T]he legal standard for sentencing a defendant to death has remained the same. Therefore, A.R.S. § 13-752(G) is not an ex post facto law.” State v. (Efren) Medina,-- P.3d --, 2013 WL 4477054 (August 22, 2013).

Intellectual Disability (Mental Retardation): In Atkins v. Virginia, 536 U.S. 304 (2002), the United States Supreme Court held that the Eighth Amendment prohibits executing mentally retarded (intellectually disabled) defendants. Arizona’s legislation, A.R.S. § 13-753, requires three criteria to be met to establish intellectual disability: (1) significantly subaverage general intellectual functioning, existing concurrently with (2) significant impairment in adaptive behavior, and (3) where the onset of the foregoing conditions occurred before the defendant reached the age of eighteen. The statute provides for a pretrial Atkins hearing, following which the trial court determines whether an intellectual disability has been proven by clear and convincing evidence; if not, the defendant remains death-eligible and the matter continues as a capital case. The defendant retains the ability to re-present evidence of intellectual disability as a mitigating factor at sentencing. (See Mitigating Circumstances, Intelligence/Education).

In State v. Grell (Grell III), 231 Ariz. 153, 291 P.3d 350 (2013), the Arizona Supreme Court independently reviewed the mitigating circumstances and found Grell had proven by a preponderance of the evidence that he is intellectually disabled. The Court vacated the death sentence and resentenced Grell to life. Although the trial court had determined pretrial that Grell had failed to establish by clear and convincing evidence that he was intellectually disabled, the Supreme Court reviewed the evidence under the lower standard of preponderance because Grell presented it as mitigation in the penalty phase. See A.R.S. § 13-751(C)(establishing defendant’s penalty phase burden of proof as preponderance of the evidence). The Court applied the Arizona statutory definition, easily found that the first and third prongs had been satisfied and most particularly scrutinized the second prong, “significant impairment in adaptive behavior.” Utilizing the lower standard of proof coupled with the “substantially more – and more convincing – evidence of adaptive skills deficits [presented] in his 2009 resentencing hearing that he presented in 2005,” and the fact that “Grell convincingly rebutted the State’s case in a way that he did not do in 2005,” the Court held that Grell had significant adaptive skill deficits.

Following Grell III, it appears that a defendant not only retains the ability to present evidence of intellectual disability as a mitigating factor, but also – and notwithstanding the adverseresults of apretrial Atkins hearing – that he may be entitled to have the jury instructed in the penalty that if it finds defendant has proven he is intellectually disabled, the jury must return a verdict of life. This issue is unsettled and will likely require further clarification and resolution by the Arizona Supreme Court.
Relevant Mitigation: The U.S. Supreme Court has made plain that a sentencing jury may not be precluded from considering “any relevant, mitigating evidence.” Buchanan v. Angelone, 522 U.S. 269, 276 (1998) (citing to Penry v. Lynaugh, Eddings v. Oklahoma, and Lockett v. Ohio). In Tennard v. Dretke, the Court reiterated that relevance in the context of capital mitigation is a “low threshold” and that such evidence is that “‘which tends logically to prove or disprove some fact or circumstance which a fact-finder could reasonably deem to have mitigating value.’” 542 U.S. 274, 284 (2004) (quoting State v. McCoy, 372 S.E.2d 12, 45 (N.C. 1988) (dissent)). A court should consider “whether the evidence is of such a character that it ‘might serve “as a basis for a sentence less than death.”’” Id. at 2571 (quoting Skipper v. South Carolina, 476 U.S. 1, 5 (1986)). While not specifically defined, the Court has indicated that matters bearing on a defendant’s “character” or “record,” or concerning the “circumstances of the offense” are relevant and cannot be taken out the realm of sentencing consideration. Lockett v. Ohio, 438 U.S. 586, 604 (1978); accord Johnson v. Texas, 509 U.S. 350, 362 (1993). An example recently given by the Court of irrelevant evidence is the frequency with which a defendant showers in jail, while records showing his good behavior in jail would be relevant. Tennard, 542 U.S. at 286. The evidence need not be causally connected to the crime, itself, to be admissible. Id. at 284-86.

But while there are “virtually no limits [] placed on the relevant mitigating evidence a capital defendant may introduce concerning his own circumstances,” Tennard, 542 U.S. at 285 (quoting Eddings. v. Oklahoma, 455 U.S. 104, 114 (1982)), this is not to say that the State cannot place parameters on the jury’s consideration of mitigation. The Supreme Court has never held that “jury consideration of mitigating evidence must be undirected or unfocused,” Franklin v. Lynaugh, 487 U.S. 164, 181 (1988), or that the State has no role in “structuring or giving shape to the jury’s consideration of [] mitigating factors.” 487 U.S. at 179; accord Boyde v. California, 494 U.S. 370, 376 (1990) (The State may require the jury to impose death if it finds that the aggravators outweigh the mitigation). Thus, in Boyde the Court approved a state trial court’s use of a list of factors for the jury’s consideration, including aggravating and mitigating circumstances along with a “catch-all” mitigating circumstance, and in Buchanan v. Angelone, supra, it approved the court’s decision to not enumerate mitigating factors, but rather charge the jury with imposing a sentence based upon “all the evidence.”_______________ [1] Note that Tennard was written by Justice O’Connor, who wrote in her concurrence in Franklin v. Lynaugh, infra, that she does not believe that residual doubt is relevant evidence.

Instructions: There is no federal constitutional obligation to instruct the jury on how to consider mitigating evidence in light of aggravating evidence, or whether the jury should consider particular mitigating factors. Thus, for example, it is permissible to tell the jury to make its sentencing decision based upon “all the evidence,” without further instruction. Buchanan, 522 U.S. at 275-77. However, post-Ring, Arizona trial courts have uniformly provided both a weighing instruction and a list of the defense’s proposed mitigating circumstances in their jury instructions, including a “catchall” instruction allowing for the consideration any other factor that the jury deems mitigating. See A.R.S. § 13-751(E) & (G).

In assessing a proposed instruction, the trial court should ask, “whether there is a reasonable likelihood that the jury [will] appl[y]] the [] instruction in a way that prevents the consideration of constitutionally relevant evidence.” Boyde, 494 U.S. at 380. The court need not consider how a “single hypothetical ‘reasonable’ juror could or might [] interpret[] the instruction,” since jurors “do not sit in solitary isolation booths parsing instructions for subtle shades of meaning in the same way that lawyers might. Differences among them in interpretation of instructions may be thrashed out in the deliberative process, with commonsense understanding of the instructions in the light of all that has taken place at the trial likely to prevail over technical hairsplitting.” 494 U.S. at 380-81.

(G)(1): Use of the precise statutory language as set forth in 13-751(G) as the mitigation factor instruction was approved by Arizona Supreme Court in regards to (G)(1). Carreon, 210 Ariz. at 69, ¶ 77, 107 P.3d at 915.

Nexus Language: In State v. Frank Winfield Anderson, 210 Ariz. 327, 111 P.3d 369 (2005), the court noted with approval the fact that the trial court did not instruct the jury that it had to find a “nexus” between the proffered mitigation evidence and the defendant’s crime. It cited with approval the more general instruction given in that case that the jury was to consider any mitigation they found “relevant in determining whether to impose a sentence less than death.” See Frank Anderson at ¶ 94.

Argument & Causal Nexus: It is not improper to allow the State to argue that there is no causal relationship between the mitigation and the crime. As the Arizona Supreme Court noted recently in Anderson, though various Supreme Court decisions “dictate a liberal rule of admissibility for mitigating evidence, they still leave it to the sentencer to ‘determine the weight to be given to relevant mitigating evidence.’” Anderson at ¶ 97 (quoting Eddings v. Oklahoma). See State v. Newell, 212 Ariz. 389, 405, ¶ 82, 132 P.3d 833, 849 (2006) (“We do not require that a [causal] nexus between the mitigating factors and the crime be established before we consider the mitigation evidence. But the failure to establish such a causal connection may be considered in assessing the quality and strength of the mitigation.”)
Waiver of Mitigation/Colloquy: A competent defendant is entitled to waive the presentation of mitigation evidence if the waiver is made knowingly, voluntarily and intelligently. State v. Hausner, 230 Ariz. 60, 280 P.3d 604 (2012).See also, State v. Joseph, 230 Ariz. 296, 283 P.3d 27 (2012)(setting set forth the inquiries that the trial court should make to determine that the defendant (1) understands what mitigation is, the right to present mitigation evidence, and the consequences of waiving that right, and (2) makes the decision voluntarily).

In Hausner, the Supreme Court commended the steps the trial judge took to ensure that Hausner was competent and that he knowingly, intelligently, and voluntarily waived mitigation. (Id. at ¶116). It further directed “that similar procedures be prospectively applied when a capital defendant elects to waive the presentation of all mitigation:”

The trial court should engage the defendant in a colloquy to ensure that the defendant understands the penalty phase process, the right to present mitigation, and the consequences of waiving this right. Defense counsel should confirm on the record that he or she has discussed with the defendant the nature of the mitigation that could be presented and the consequences of waiver. The court should confirm on the record that the defendant is waiving the presentation of mitigation knowingly, intelligently, and voluntarily. If the circumstances present questions about the defendant’s competence, the court should order an appropriate mental examination before accepting the waiver. These procedures will help ensure that waivers are made on an informed and voluntary basis and, by avoiding subsequent questions on these issues, also facilitate the review of any related capital sentences. (Id. at ¶122)

Further, where defendant elects to present no evidence in mitigation at the Penalty Phase, a trial court does not commit reversible error in permitting the State to present evidence. State v. Nordstrom, 230Ariz. 110, 280 P.3d 1244, 1248 (2012). In reaching this conclusion, the Court applied rules of statutory construction and taking two statutory provisions together evinced a legislative intent to permit the state to introduce relevant evidence during the penalty phase, whether or not the defendant chooses to introduce mitigation evidence. Further, the evidence presented was neither prejudicial nor did its presentation constitute a due process violation. (Legislation enacted in 2012 confirms the court’s determination of legislative intent.) (Id. at ¶10). See also, State v. Joseph, 230 Ariz. 296, 283 P.3d 27 (2012)(Although Joseph elected not to present any mitigating evidence, the Court held that the jury was permitted to consider in mitigation “any evidence that was presented at any prior phase of the trial.” A.R.S. § 13–752(I)).

Cases where the death sentence was reduced have been marked with an *.